BROWN and HUGHES v. BLACK, et al.

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BROWN and HUGHES

v.

BLACK, et al.

September 15, 2000

Record No. 992751

PAULINE BROWN

v.

WILLIAM BLACK, ET AL.

ELAINE HUGHES

v.

WILLIAM BLACK, ET AL.

FROM THE CIRCUIT COURT OF SUSSEX COUNTY

James A. Luke, Judge

Present: All the Justices

OPINION BY JUSTICE LEROY R. HASSELL, SR.

I.

In these consolidated appeals from two separate
judgments, we consider whether the circuit court, which had not
entered orders compelling discovery, erred in dismissing the
plaintiffs’ motions for judgment because of their failure to
respond to the defendants’ discovery requests.

II.

Pauline Brown and Elaine Hughes, represented by
the same counsel, filed separate motions for judgment against
William Black, National Railroad Passenger Corporation, d/b/a
Amtrak, Paul Jones Elliott, Car Center, and CSX Transportation,
Inc. The plaintiffs alleged that they were injured while
traveling as passengers on the same train operated by Amtrak and
that the defendants breached certain duties owed to them.

In June 1998, defendants Black, Amtrak, and CSX
Transportation propounded interrogatories to the plaintiffs in
the separate actions. Defendants Elliot and Car Center
"joined" with the co-defendants in these discovery
requests. The plaintiffs failed to respond to the discovery
requests. In May 1999, defendants Black, Amtrak, and CSX
Transportation filed motions "to compel answers to
interrogatories, deposition of plaintiff, independent medical
examination of plaintiff or in the alternative to dismiss
plaintiff’s motion for judgment with prejudice" in both
actions.

These defendants asserted in their motions that
the plaintiffs failed to respond to certain interrogatories
propounded to them, that the defendants’ counsel "wrote to
[plaintiffs’] counsel requesting answers to the
interrogatories," and that in March 1999 "defendants’
counsel wrote [plaintiffs’] counsel requesting dates for [the
plaintiffs’ depositions and independent medical
examinations.]" According to the allegations in the
defendants’ motions, even though plaintiffs’ counsel replied that
she would "get back shortly" to defendants’ counsel,
she failed to do so. The defendants’ counsel requested that the
circuit court enter orders requiring the plaintiffs to comply
with the discovery requests or, in the alternative, that the
court dismiss with prejudice the plaintiffs’ motions for
judgment.

After the plaintiffs did not respond to the
defendants’ motions, the defendants gave the plaintiffs notice of
a hearing. At the hearing, the circuit court permitted defendants
Elliott and Car Center to "join in" the motions.
Counsel did not appear for either plaintiff. However, a lawyer,
who was apparently contemplating serving as new counsel for the
plaintiffs in these actions, attended the hearing but
specifically declined to be named as counsel of record for the
plaintiffs. The court ruled that it would dismiss both motions
for judgment.

The plaintiffs filed motions for
reconsideration after the court had ruled, but before the entry
of orders dismissing their motions for judgment. Plaintiffs’
counsel argued that Rule 4:12 authorizes a circuit court to
dismiss a motion for judgment only if the plaintiff has failed to
obey a discovery order. The plaintiffs asserted that the circuit
court should not have dismissed their motions for judgment
because the court had not entered orders compelling discovery in
their respective cases. The circuit court concluded that the
plaintiffs were derelict in the prosecution of their cases and
declined to change its ruling. Subsequently, the circuit court
entered orders dismissing the motions for judgment. The
plaintiffs appeal.

III.

Rule 4:12 states in relevant part:

"(a) Motion for Order Compelling
Discovery.  A party, upon reasonable notice to other
parties and all persons affected thereby, may apply for an order
compelling discovery as follows:

. . . .

"(b) Failure to Comply With Order. 
(1) Sanctions by Court in County or City Where Deposition Is
Taken. If a deponent fails to be sworn or to answer a question
after being directed to do so by the court in the county or city
in which the deposition is being taken, the failure may be
considered a contempt of that court.

"(2) Sanctions by Court in Which Action Is
Pending. If a party or an officer, director, or managing agent of
a party or a person designated under Rule 4:5(b)(6) or 4:6(a) to
testify on behalf of a party fails to obey an order to provide
or permit discovery, including an order made under
subdivision (a) of this Rule or Rule 4:10, the court in which the
action is pending may make such orders in regard to the failure
as are just, and among others the following:

"(A) An order that the matters regarding
which the order was made or any other designated facts shall be
taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order;

"(B) An order refusing to allow the
disobedient party to support or oppose designated claims or
defenses, or prohibiting him from introducing designated matters
in evidence;

"(C) An order striking out pleadings or
parts thereof, or staying further proceedings until the order is
obeyed, or dismissing the action or proceeding or any part
thereof, or rendering a judgment by default against the
disobedient party;

. . . .

"(d) Failure of Party to Attend at Own
Deposition or Serve Answers to Interrogatories or Respond to
Request for Inspection.  If a party or an officer,
director, or managing agent of a party or a person designated
under Rule 4:5(b)(6) or 4:6(a) to testify on behalf of a party
fails (1) to appear before the officer who is to take his
deposition, after being served with a proper notice, or (2) to
serve answers or objections to interrogatories submitted under
Rule 4:8, after proper service of the interrogatories, or (3) to
serve a written response to a request for inspection submitted
under Rule 4:9, after proper service of the request, the court in
which the action is pending on motion may make such orders in
regard to the failure as are just, and among others it may take
any action authorized under paragraphs (A), (B), and (C) of
subdivision (b)(2) of this Rule. In lieu of any order or in
addition thereto, the court shall require the party failing to
act or the attorney advising him or both to pay the reasonable
expenses, including attorney’s fees, caused by the failure,
unless the court finds that the failure was substantially
justified or that other circumstances make an award of expenses
unjust."

"The failure to act described in this
subdivision may not be excused on the ground that the discovery
sought is objectionable unless the party failing to act has
applied for a protective order as provided by Rule 4:1(c)."

(Emphasis added).

The plaintiffs contend that even though Rule
4:12 grants a circuit court the authority to dismiss an action
because of a party’s failure to comply with discovery, such
dismissal is appropriate only when that party has violated a
court order compelling a party to comply with a discovery
request. The defendants respond that Rule 4:12(d) grants a
circuit court the authority to dismiss an action if a plaintiff
fails to serve answers to interrogatories submitted under Rule
4:8 after proper service of the interrogatories and that
"[t]he violation by a party of an order is not a condition
precedent to the imposition of sanctions under Rule 4:12."
Continuing, the defendants say the dismissals were justified in
these cases because the plaintiffs failed to respond to
interrogatories filed more than a year before the dismissals, did
not appear at the hearing on the motion to compel discovery, and
had not pursued their respective causes of action with diligence
for more than one year. We disagree with the defendants’
arguments.

Rule 4:12(a) sets forth the procedure that a
party must follow to obtain an order compelling discovery and
permits a court to award attorney’s fees and expenses. Rule
4:12(b) enumerates the sanctions that a court may impose if a
party "fails to obey an order to provide or permit
discovery." Thus, a party’s failure to obey such an order is
a prerequisite for the imposition of sanctions under paragraphs
(A), (B), and (C) of Rule 4:12(b)(2).

Rule 4:12(d) permits a circuit court to take
the actions authorized under paragraphs (A), (B), and (C)
of Rule 4:12(b)(2) when a party acts or fails to act in the
circumstances set forth in Rule 4:12(d). As stated above,
however, those actions are only authorized when a party has
failed "to obey an order to provide or permit
discovery." Thus, we conclude that the limitation on the
circuit court’s power to impose sanctions specified in paragraphs
(A), (B), and (C) of Rule 4:12(b)(2), that a party has failed to
obey an order to provide or permit discovery, necessarily
restricts the circuit court’s exercise of those powers under Rule
4:12(d).

We also note that both Rule 4:12(b)(2) and Rule
4:12(d) provide that "the court in which the action is
pending may make such orders in regard to the failure [to comply
with discovery] as are just." This language, which gives a
circuit court broad discretion to tailor its sanctions to the
particular conduct of a party in a given case, was not intended
to confer upon a court the power to dismiss an action unless a
party has violated an order compelling discovery. Neither Rule
4:12(b)(2) nor Rule 4:12(d) permits such a drastic sanction in
the absence of the violation of an order compelling discovery.

Our interpretation of Rule 4:12(b)(2) does not
render meaningless the provisions in Rule 4:12(d). Unlike Rule
4:12(b)(2), Rule 4:12(d) specifically limits the discretion of
circuit court to deny a request for sanctions for the proscribed
conduct by providing that a circuit court may not excuse a
party’s failure to act unless that party has applied for a
protective order as provided in Rule 4:1(C). We further note that
Rule 4:12 does not impose different requirements for obtaining
sanctions based on the severity of a discovery violation, but
uniformly subjects every failure to comply with an order
compelling discovery to the circuit court’s discretionary
authority provided in that Rule.

As the defendants have recognized, the federal
courts, in interpreting Federal Rule of Civil Procedure 37 which
is substantially similar to Rule 4:12, have held that federal
district courts may dismiss an action for a party’s failure to
comply with discovery even though an order compelling discovery
has not been entered. See, e.g., Aziz v. Wright,
34 F.3d 587, 589 (8th Cir. 1994). However, it is the
responsibility of this Court to interpret our own Rules regarding
pretrial procedures for the parties in the courts of this
Commonwealth. And, even though the federal courts’
interpretations of their rules in some instances may be
informative, those interpretations are not binding on this
Court’s interpretation of our Rules.

Accordingly, we hold that Rule 4:12(d), when
read with the other provisions in Rule 4:12, authorizes a circuit
court to dismiss a motion for judgment only when the plaintiff
fails to comply with a court’s order to provide or permit
discovery. Therefore, the circuit court erred in dismissing the
plaintiffs’ motions for judgment.

IV.

We will reverse the judgments of the circuit
court, and we will remand these cases for further proceedings.

Because I believe the trial court abused its
discretion under Rule 4:12, I concur in the result reached by the
majority; however, I cannot subscribe to the majoritys
interpretation of Rule 4:12(d). Therefore, I write separately to
discuss the analytical framework established by the plain
language of Rule 4:12, in particular the relationship among
subsections (a), (b)(2), and (d) of that rule.

First, subsection (a) authorizes a party to
move for an order compelling discovery if a deponent fails to
answer a question; if a party fails to answer an interrogatory;
or, if in response to a request for inspection, a party fails to
respond that the inspection will be permitted or to permit the
inspection. For purposes of subsection (a), an evasive or
incomplete answer is treated as a failure to answer. Rule
4:12(a)(3). If the requesting party prevails on the motion to
compel, the court may, depending on the relief requested in the
motion, order the opposing party to answer a particular question
or interrogatory, or provide additional information. However, the
only sanction that the court may impose, if appropriate, is an
award of expenses, including attorney’s fees. Rule 4:12(a)(4).

Subsection (b)(2) provides that if a party
fails to obey an order to provide or permit discovery, including
an order made under subsection (a), a court may enter such orders
as are just and may impose the sanctions enumerated in paragraphs
(A), (B), (C), (D) and (E) of subsection (b)(2). These paragraphs
authorize sanctions such as directing that certain matters or
facts shall be taken to be established; refusing to allow the
disobedient party to support or oppose designated claims or
defenses; striking the pleadings, or some part of them;
dismissing the action; or treating the failure to obey as a
contempt of court.

Finally, subsection (d) applies when a party
fails to do one of the following: (1) appear for a deposition
after being served with proper notice, (2) serve answers or
objections to interrogatories after proper service of the
interrogatories, or (3) serve a written response to a request for
inspection after proper service of the request. In these
instances of a complete failure to respond, a court may make such
orders as are just and may impose any of the sanctions enumerated
in paragraphs (A), (B), and (C) of subsection (b)(2). Subsection
(d) further provides that a partys failure to act in one of
the enumerated instances is not excused on the basis that the
discovery is objectionable unless the party failing to act has
applied for a protective order under Rule 4:1(c).

In finding that the trial court in the present
cases erred in dismissing the motions for judgment filed by
Pauline Brown and Elaine Hughes, the majority interprets
subsection (d) of Rule 4:12 as implicitly containing a provision
like that found in Rule 4:12(b)(2), specifically that a party
must fail to obey an order providing or permitting discovery
before the sanctions prescribed in subsections (b)(2)(A), (B),
and (C) may be imposed. Because the sanctions enumerated in these
subsections are permitted under subsection (b)(2) only when a
party has failed to obey an order to provide or permit discovery,
the majority reasons that the predicate provision of Rule
4:12(b)(2), i.e., prior issuance of an order compelling
discovery, limitsa trial courts exercise of its
powers under subsection (d) as well as under subsection (b)(2). I
do not agree.

Subsection (a) of Rule 4:12 is implicated when
a party provides only a portion of the information sought through
discovery. Subsection (b)(2) is invoked after a trial court
issues an order to provide or permit discovery, including an
order to compel pursuant to subsection (a), and that order is
disobeyed. However, the discovery problems addressed in
subsections (a) and (b)(2) are different from those covered by
subsection (d). Subsection (d) applies when a party completely
fails to respond to discovery requests, such as not appearing at
a deposition after proper service or not responding at all to a
set of interrogatories. In those instances, a trial court has the
discretion to make such orders as are just and toutilize
the sanctions specified in paragraphs (A), (B), and (C) of
subsection (b)(2) without first issuing an order compelling a
party to attend a deposition, to serve answers or objections to
interrogatories, or to serve a written response to a request for
inspection. However, the majoritys construction of Rule
4:12(d) prevents a trial court from imposing any of the permitted
sanctions directly upon a partys complete failure to
respond to discovery requests. The majority reaches this
result even though subsection (d) addresses the most egregious
discovery abuses and provides that "the failure to act
described inthis subdivision may not be excused on the
ground that the discovery sought is objectionable unless the
party failing to act has applied for a protective order . . .
."

In interpreting court-adopted rules, courts
should apply the same principles that govern statutory
construction. Hanson v. Commonwealth, 29 Va. App. 69, 77,
509 S.E.2d 543, 546 (1999) (citing Green v. Lewis Truck Lines,
Inc., 443 S.E.2d 906, 907 (S.C. 1994)). One of those
principles is preserving the harmony of the entire scheme of a
statute or rule. However, the majoritys decision in this
case ignores the "settled principle of statutory
construction that every part of a statute is presumed to have
some effect and no part will be considered meaningless unless
absolutely necessary." Sansom v. Board of Supervisors of
Madison County, 257 Va. 589, 595, 514 S.E.2d 345, 349 (1999).
Once the predicate requiring violation of an order regarding
discovery is imported to subsection (d), that subsection is
subsumed entirely into subsection (b)(2) and, consequently,
rendered meaningless. Thus, I conclude that Rule 4:12(d)
expressly provides for the use of the sanctions contained in
paragraphs (A), (B), and (C) of subsection (b)(2) upon a party’s
failure to attend a deposition, to serve answers or objections to
interrogatories, or to serve a written response to a request for
inspection, absent a prior order compelling such action.[1]

This reading of the operation of Rule 4:12(d)
comports with the manner in which federal courts have applied
Rule 37 of the Federal Rules of Civil Procedure. The pertinent
terms of both rules are essentially identical. Federal courts
have consistently interpreted subsection (d) of Rule 37 as
authorizing a trial court to impose sanctions for the discovery
abuses addressed in that subsection even though a party has not
violated any prior court order regarding discovery. SeeAziz
v. Wright, 34 F.3d 587, 589 (8th Cir. 1994) (Federal Rule of
Civil Procedure 37(d) allows court to dismiss action if party
fails to appear for deposition; no motion to compel is required
before such dismissal); Sigliano v. Mendoza, 642 F.2d 309,
310 (9th Cir. 1981) ("Dismissal is a proper sanction under
Rule 37(d) for a serious or total failure to respond to discovery
even without a prior order."); Dorey v. Dorey, 609
F.2d 1128, 1135 (5th Cir. 1980) (Rule 37 sanctions are ordinarily
imposed following violation of court order; only exceptions are
situations involving Rule 37(c) and (d); Al Barnett & Son,
Inc. v. Outboard Marine Corp., 611 F.2d 32, 35 (3rd Cir.
1979) (direct order by court is not necessary predicate to
imposing sanctions under Rule 37(d)); Robison v. Transamerica
Ins. Co., 368 F.2d 37, 39 (10th Cir. 1966) (sanctions under
Rule 37(d) apply irrespective of whether court has ordered
delinquent party to appear for deposition or to answer
interrogatory); butseeUnited States v. Certain
Real Property Located at Route 1, Bryant, Alabama, 126 F.3d
1314, 1317 (11th Cir. 1997) (although Rule 37(d) does not require
issuance of order compelling discovery before sanctions are
authorized, "judicial interpretation of the rule"
requires such order or motion to compel before default judgment
may be imposed as a sanction).

The structure of Rule 37 has been described as
a system of "progressive discipline." 7 James Wm. Moore
et al., Moore’s Federal Practice ? 37.90 (3rd ed. 2000). I
believe that description is equally applicable to Rule 4:12.
Viewed in that manner, the function of subsection (d) in both
rules becomes apparent.

The misconduct at which subdivision (d) is
directed consists of a party’s complete failure to respond, by
way of appearance, objection, answer, or motion for protective
order, to a discovery request. Such a complete failure strikes at
the very heart of the discovery system, and threatens the
fundamental assumption on which the whole apparatus of discovery
was designed, that in the vast majority of instances, the
discovery system will be self-executing.

* * * *

Thus, if a party . . . does not
appear for a properly noticed deposition, does not answer or
object to interrogatories properly served, or does not make a
written response to a proper request for production or
inspection, the court may impose sanctions directly, without
first issuing an order to compel discovery.

Id.

Accordingly, I cannot conclude, as the majority
does, that the dismissal of the motions for judgment pursuant to
Rule 4:12(d) in the absence of a violation of an order compelling
discovery was legal error. Rather, I maintain that the trial
courts decision to dismiss the plaintiffsmotions
for judgment under Rule 4:12(d) based on the failure to respond
to the defendants discovery requests should be reviewed
pursuant to an abuse of discretion standard.SeeRappold
v. Indiana Lumbermens Mut. Ins. Co., 246 Va. 10, 15, 431
S.E.2d 302, 305 (1993) (trial courts decision under Rule
4:12 will not be reversed unless decision amounts to abuse of
discretion). In applying that standard, I adhere to the view
that, when the most severe sanctions are imposed, one part of the
inquiry is whether a trial court could have furthered the goals
of discovery through less drastic measures. SeeWilson
v. Volkswagen of America, 561 F.2d 494, 503-06 (4th Cir.
1977), cert. denied, 434 U.S. 1020 (1978) (trial
courts range of discretion is more narrow when imposing
most severe sanction in range of sanctions available); Mutual
Federal Savings & Loan v. Richards & Assoc., 872 F.2d
88, 92 (4th Cir. 1989) (when trial court uses most severe
sanction, courts decision "is confronted head-on by
the partys rights to a trial by jury and a fair day in
court").

Applying that guiding principle, I am convinced
that the trial courts decision to dismiss the instant cases
amounted to an abuse of discretion. In the prayers for relief
contained in the defendants motions, the defendants
requested the trial court to order Brown and Hughes to answer
interrogatories, to submit to depositions, and to undergo
independent medical examinations, all to be completed within 30
days. In the alternative, they asked for dismissal of the cases
with prejudice. In ruling on the defendants’ motions, the trial
court declined to grant the primary relief requested in lieu of
the far more severe sanction of dismissal. Considering not only
that the trial court did not determine whether a less drastic
sanction would have resolved the discovery abuse and at the same
time furthered the goals of discovery, but also that it did not
make any findings regarding whether the plaintiffs had acted in
bad faith; to what extent, if any, the defendants had been
prejudiced by the discovery delay; or whether plaintiffs had
engaged in other discovery abuses, I would hold that the trial
court abused its discretion by imposing the most severe sanction
in these cases.

For these reasons, I respectfully concur only
in the judgment of the majority opinion.

FOOTNOTES:

[1] As noted below, selection of the severity of the
sanction imposed is a matter of discretion depending on the
circumstances presented to the court.